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On the last day possible, Jerry Brown, the Governor of California passed SB 822, a state net neutrality bill into law. Within hours the US Justice Department filed a lawsuit against the California legislation.

As bill is relatively short and straightforward. The law applies to both landline and mobile broadband. The prohibitions against ISP behavior are detailed more clearly than in the old FCC net neutrality rules. Specifically, the California net neutrality law:

Prohibits ISPs from requiring compensation, monetary or otherwise, from edge providers (companies like Netflix or Facebook) for delivering Internet traffic or content;

Prohibits paid prioritization;

Prohibits zero-rating;

Prohibits interference with end user’s ability to select content, applications, services or devices;

Prohibits ISPs from offering any product that evades any of the above prohibitions;

Requires the full and accurate public disclosure of network management practices, performance, and clearly-worded terms of service.

As you would expect, the big ISPs in the state like AT&T and Comcast vehemently opposed the legislation and almost derailed its passage. Interestingly, the big edge providers like Google, Facebook and Netflix have remained quiet on the new law.

This is already shaping up to be one of the most interesting legal fights we’ve ever seen concerning the FCC. Chairman Pai and the other Republican FCC Commissioners immediately declared that the new law is invalid and that states can’t override FCC policy. The lawsuit filed by the Justice department says that California is “attempting to subvert the Federal Government’s deregulatory approach” to the Internet.

That’s where it gets interesting, because the FCC didn’t deregulate broadband. They instead took themselves out of the picture as a broadband regulator by cancelling Title II regulation of broadband, and passing regulation to the Federal Trade Commission.

The FCC could have chosen a different path, which would have been to continue to regulate broadband, but choosing to not require any specific regulatory requirements. That’s the tactic the agency has taken in the past when it decided to end some telephone regulations. The FCC still has the legal authority to re-regulate those telephone issues, but exercises its authority to not regulate – and maintaining the authority to authority is the key issue in this case. The FCC deliberately killed Title II regulation to make it harder for future a FCC to regulate broadband – but in doing so they literally wrote the agency out of the broadband regulation business.

The courts will have to decide if the federal government has any basis for overriding the California law. The FCC created a legal void when they walked away from regulating broadband. In regulatory terms broadband is not deregulated – it is not regulated, and while perhaps a subtle language difference, it’s a huge distinction.

The legal question is not if California is challenging the FCC’s authority to deregulate broadband, because the FCC themselves say they no longer have any authority over broadband. The courts will have to instead decide if a state can step into a regulatory void when the federal government walks away from regulating an industry. There are numerous lawyers saying that California has a strong legal position.

This is such a major decision that I’m guessing it’s going to have to eventually get resolved by the Supreme Court – and that’s going to take a while. The FCC created this situation by abrogating their responsibility to regulate broadband. It’s nearly unthinkable that one of the major industries in the country, operated mostly by a small number of giant companies should not be regulated. But the regulatory mess we have with broadband ultimately lies with Congress which has not passed an update to the telecom rules since 1996, when dial-up was our portal to the Internet.

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It is the best of times, it is the worst of times (for broadband grants). The state of California just initiated a state broadband grant program that is likely to spend money without doing much actual good for rural broadband. This can be contrasted to the grant program in Minnesota that has already funded a lot of rural broadband networks in communities that would have otherwise not probably ever gotten it. Comparing the two programs shows that it’s not good enough to lobby for and get a state broadband grant program. It’s important to get the details right to make sure that any such program is effective and creates maximum public benefit.

The California grant program is called the California Advanced Broadband Services Fund (CASF) and was recently granted funding by Assembly act 1665 and signed into law by Governor Jerry Brown. The CASF program is not new, but this recent act changes some of the grant rules and infuses $100 million of new funding into the program.

Interestingly the new law takes effect immediately (which is not normal for this kind of legislation) and this leaves four existing open broadband grants under the older CASF open for question because while they were filed under the old rules it seems like they will be judged under the new rules.

The big problem with the grant program is that it allows first right of refusal to the incumbent telcos in any propose service area. Like with most of America, the rural areas with poor broadband service in California are mostly in areas where AT&T or Frontier Communications are the incumbent telephone company.

It is this right of refusal that is going kill any real value of the grant program. For example, somebody might file to build fiber to customers in a small town or farming area. The incumbent telephone company can block the grant application by filing one of their own. But they don’t have to match the speed or technology of the first grant and could instead ask to build something else, such as upgrading existing DSL or cellular broadband. This effectively gives the incumbent telcos veto power over any grant request.

I’ve been reading local California consultants like Steve Blum who expects the incumbents to kill most projects. It’s possible they might let a few through in areas that they don’t want to make investments, but their lobbyists were successful in changing this law to make it easy for them to grab all of the funding if they choose to do so.

This contrasts greatly with a grant program that is doing things the right way – the Border-to-Border grants in Minnesota. In that programs the legislature has set aside funding now for four straight years that provides grants up to a 50% matching for qualifying broadband projects. So far the state has provided over $85 million to the program.

The incumbent providers have the ability to challenge a grant request, but only on a very limited basis. One of the parameters used to judge a grant request is whether a particular area is unserved or underserved with broadband, with this determination made from broadband maps that were created using ISP-reported data. The incumbents can challenge a grant request if they believe that the proposed service area has better broadband than is claimed by the mapping process. They also can challenge a grant if they have near-term plans to build broadband that is fast or faster than that requested by a grant request.

Since most of the Minnesota grant requests are requesting money to build fiber directly to customers there have been no serious challenges by the incumbents. There have been a few challenges that disputed the available speeds in an area.

The net result of the Border-to-Border grants is that small towns and rural farm areas all over the state are getting a real permanent broadband solution due to the assistance provided by the grants. There are a number of independent telephone companies and small cable companies in the state that are competing with each other to grab new territories that are made feasible due to the grant program.

There is no telling if the Minnesota grant program will continue because it’s been funded during a period of state budget surpluses. It’s expected that the budget will be tighter in 2018 and we’ll have to see if they keep the grants going. But this has been, by far, the most effective state broadband grant program in the country. Other states like Ohio are looking to use the Minnesota model in developing a new grant program.

It’s my understanding that the California grant legislation started out with good intentions but got hijacked by the ever-present telecom lobbyists in the legislature. The original sponsors of the grant asked the governor to veto the bill, but for some reason it’s gone ahead. Instead of an effective grant program that will help rural areas get real broadband, the California CASF is instead going to be a state version of the FCC’s CAF II program that also funnel money to the large incumbent telcos to make marginal improvements to broadband. The new CASF is one of the worst uses of tax dollars that I can imagine – it will enrich the bottom line of the telcos without making any significant improvements in rural broadband.

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It looks like there are going to be a number of challenges to the FCC’s recent repeal of Title II regulation and net neutrality. Appealing FCC decisions is normal for controversial rulings and the big telcos and cable companies have routinely challenged almost every FCC decision they haven’t liked.

The FCC voted to repeal Title II regulation on December 14th, but just released the order on Friday. As expected, there were some wording changes made that the FCC hopes will help during the expected legal challenges. The time clock for any challenges will start when the order is published in the Federal Register. The FCC order goes into effect 60 days later and any court challenges must be filed within that two-month window.

When FCC rules are challenged, it’s not unusual for a court to put a stay on some parts, or even make an entire new ruling until the legal issues are sorted out. This happened a few years back when Verizon challenged the FCC’s first net neutrality order and the courts stayed all of the important parts of that ruling before eventually ruling that the FCC didn’t have the authority to make the rules as they did.

It appears that challenges are going to come from a number of different directions. First, there are states that have said they will challenge on procedural issues. This is a tactic often taken by the big ISPs, and generally if the courts agree that the FCC didn’t follow the right procedures in this docket they will then rule that the agency has to start the whole process over again. That alone would not change the outcome of the proceeding, but it could add another year until the FCC’s order goes into effect. I wonder if this kind of delay is meaningful because it’s likely that this FCC won’t enforce any net neutrality ‘violations’ during a reboot of the rules process.

The Attorney General of New York has an interesting appeal tactic. He is claiming that the FCC ignored the fact that there were millions of fake comments made in the docket – some for and others against the proposed rules. New York is suing the FCC over the issue and expects some other states to join in the lawsuit. This would be a unique procedural challenge and would be another way to have to reset and start the whole process over again.

Legislators in California, New York and Washington are planning to tackle the issue in a different way. Legislators are proposing to create a set of state net neutrality laws that basically mimic what was just repealed by the FCC. These states would not be directly challenging the FCC order and it would require some third party like a big ISP to challenge the state laws through the court system. Such a process might take a long time since it might have to go through several layers of courts, and might even end up at the US Supreme Court. State’s rights have been a common way to challenge FCC rulings ad there have been numerous fights between states and the FCC any time that Congress has created ambiguity in telecom laws.

The hope of these state legislators is that the state rules will be allowed to stand. They know that if ISPs and other tech companies have to follow net neutrality laws in large states like California that they are more likely to follow them in the whole country. A similar State / Federal battle is also underway on a different issue and twenty states are considering enactment of state privacy laws to replace ones preempted by Congress.

Another challenge to the FCC’s decision will come from democrats in Congress who are trying to use the Congressional Review Act (CRA) rules to challenge the FCC’s ruling. This is a set of rules that allow Congress to reverse rulings from administrative agencies like the FCC with a simple majority and has been used effectively recently by republicans in a number of ways. With a 51-49 Republican majority it would only take a few republican defections to maintain at least some aspects of net neutrality. The make-up of the Congress might also change with the elections later this year – meaning that Congress might change the rules in the middle of all of the various appeals.

One thing is for certain – this FCC ruling is not going to be easily implemented and I’m guessing that during the next sixty days we will see a number of creative challenges used to appeal the FCC’s ruling. It could easily be a few years before these issues are resolved through the courts.

California Governor Jerry Brown just signed a bill into law that lowers the official definition of broadband in the state while also providing state funding to upgrade rural broadband. The bill, AB 1665, goes into effect immediately. It lowers the definition of broadband in the state to 10 Mbps down and 1 Mbps up. But it goes even further and lowers the definition of an unserved customer to somebody who can’t get speeds of 6 Mbps and 1 Mbps up.

The bill reinstates a telecom tax that will provide a $300 million fund intended to be used to improve rural broadband. The California press believes that the fund will largely go to AT&T and Frontier, which both lobbied hard for the bill. My reading of the bill is that the incumbent carriers have first shot at the funding and anybody else only gets it when they don’t take it. In practical terms, assuming those two companies take the funding, almost none of this money would be made available to anybody who wants to build something faster in unserved areas.

We know that state funding done the right way can be a tremendous boon to broadband expansion. Consider, for example, the Minnesota DEED grants that have coaxed dozens of telecom providers to expand fiber networks deep into unserved and underserved areas of the state. It’s commonly understood that it can be hard to justify bringing fiber to rural areas, but some grant funding can be an effective tool to attract private money to fund the rest.

We also understand today that there are huge economic benefits for areas that have good broadband. The farmers in Minnesota that benefit from the grant program there are going to have a competitive advantage over farmers elsewhere that have little or no broadband. I’ve been looking at the IOT and other fiber-based technologies on the horizon for farming that are going to vastly increase productivity.

We also know that having good broadband benefits the small communities in rural America as well. These communities have been experiencing brain drain and economic flight as people are forced to go to metropolitan areas to find work. But broadband opens up work-at-home opportunities that ought to make it possible for families to thrive in rural America.

This move by California is a poor decision on many levels. First, it funnels money to the incumbent providers to make tiny tweaks to the existing networks so that existing broadband is just a little better. The new 10/1 Mbps broadband definition is also nothing more than a legislative definition of broadband and has no relevance in the real world. Many homes need more broadband than that, and as household broadband demand grows, a 10/1 Mbps connection will become inadequate for every home.

Another reason this is a bad idea is that the incumbents there are already making improvements to increase broadband to the 10/1 Mbps level. AT&T took $361.4 million of FCC CAF II funding that is to be used to upgrade broadband to 141,500 homes in California. That works out to $2,554 per home passed. Frontier took another $36.6 million, or $2,853 per home passed to improve broadband to 12,800 homes. That federal money requires that speeds increase to the 10/1 Mbps speed. This state funding will be an additive to those large federal amounts that these two companies have already received from the government.

AT&T has also already said that it plans to meet its CAF II obligations by upgrading rural cellular speeds. Frontier is mostly going to improve DSL on ancient copper and also is now looking at using point-to-point wireless technology to meet the CAF II obligations.

I don’t know how much it’s going to cost these companies to upgrade their rural customers to 10/1 Mbps. But the federal funding might be enough to pay for all of it. Adding the state funding means it’s likely that these two companies will make an immediate profit from upgrading rural customers to barely adequate broadband speeds. As we’ve seen many times in the past, this bill is good evidence that the big companies get value out of their lobbying efforts. The losers in all of this are the homes that won’t get anything faster than CAF II broadband. This $300M could have been used as matching grants to bring much faster broadband to many of these homes.

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The FCC has documented very well the lack of rural broadband. They gave out a tiny handful of ‘experimental’ broadband grants that were supposedly going to be the precursor to a large federal broadband grant program funded by the Universal Service Fund. But as usually happens with these things, politics took over and $9 billion was instead awarded through the CAF II program to the largest telcos to expand rural broadband to a paltry 10 Mbps download and 1 Mbps upload.

And this is a shame because $9 billion could have been used as seed money in matching grants to build a whole lot of last mile broadband. This money could have seeded perhaps $40 billion to $50 billion of fiber in rural areas which would have meant that a lot of areas would get real broadband solutions. What’s probably the saddest is that the CAF II program lasts for six years, so that money is going to be tied up for a long time.

There doesn’t look to be any other move to provide federal funding for fiber, but there are some states that have been looking at the issue. But, as you might imagine, politics comes into play in these efforts as well. There aren’t a whole lot of state programs that are trying to fund fiber, but consider these two that are:

Minnesota crated the Border-to-Border Broadband Development Grant Program, created by the Legislature in 2014 and administered by the Department of Employment and Economic Development (DEED). The grant provides dollar-for-dollar matching for constructing last mile fiber, although the money is likely to go to projects that contribute a higher percentage of the cost of a project. Minnesota is one of the lucky states that is running a budget surplus and this seemed like a good way to spend some of that money. There are numerous rural communities in the state that are actively seeking a broadband solution, so there is no lack of potential projects to be funded.

This was created in the 2014 legislature and the original bill asked to fund this with $100 million. The cable companies and carriers lobbied heavily against this funding, not wanting to have the state fund any competitors – although the funding was supposed to be used in areas where there is no broadband today. And the carriers were successful and chopped the grant pool down to $20 million.

When that money was awarded last year it went almost entirely to independent telephone companies and the only non-incumbent recipient of the grant was a new start-up cooperative. There were numerous applications from municipalities, but none were funded. The governor has recently recommended funding $200 million to this fund over the next two years, and we’ll have to wait and see how much of this makes it through the political gauntlet.

California has a program called the California Advanced Services Fund. Attempts to create funds within that program to build rural fiber have also been met with stiff opposition from the large incumbents.

Recently a bill was introduced to add $350 million to that fund, $150 million of which would go directly towards building last mile fiber in the form of matching grants. Past attempts to get infrastructure funding failed. The latest proposal has made it clear that any funding would only go to rural areas (in the last proposal it could have gone to urban areas). The new funding also has a significant pot of money allocated to broadband adoption efforts and for bringing broadband to public housing. Proponents of the bill are hoping that this will be more acceptable to the opponents, but if the past is any indicator the incumbents don’t want any competition of any kind.

It’s certainly laudable for the states to tackle broadband. There are obviously not going to be any federal programs aimed at the problem for now and anybody who understands broadband knows that help is needed in getting broadband to rural areas. But it seems that every attempt by states to tackle the problem gets killed or whittled down to the bare bones during the political process.